CHAPTER XI. OF THE CLERGY. THE people, whether aliens, denizens, or natural-born subjects, are divisible into two kinds; the clergy and laity: the clergy, comprehending all persons in holy orders, and in ecclesiastical offices, will be the subject of the following chapter. (1) excludes legislation by the states on the same subject. It is competent for congress, however, when they have established an uniform rule, to give to the state courts jurisdiction under it. State v. Penney, 6 Eng. 621. The following are the provisions of congressional legislation now in force: That any alien, being a free white person, may be admitted to become a citizen of the United States, or any of them, on the following conditions, and not otherwise: First. That he shall have declared on oath or affirmation, before the supreme, superior, district or circuit court of some one of the states, or of the territorial districts of the United States, or a circuit or district court of the United States, or a clerk of any such court, two years at least before his admission, that it was bona fide his intention to become a citizen of the United States, and to renounce forever all allegiance and fidelity to any foreign prince, potentate, state or sovereignty whatever, and particularly the prince, potentate, state or sovereignty whereof such alien may at the time be a citizen or subject. Second. That he shall at the time of his application to be admitted declare on oath or affirmation, before some one of the courts aforesaid, that he will support the constitution of the United States, and that he doth absolutely and entirely renounce and abjure all allegiance and fidelity to every foreign prince, potentate, state or sovereignty whereof he was before a citizen or subject. Third. He must satisfy the court by evidence that he has resided within the United States five years at least, and within the state or territory where the court is held one year at least, and during that time behaved as a man of good moral character, attached to the principles of the constitution of the United States, and well disposed to the good order and happiness of the same. Fourth. He shall at the time renounce any hereditary title or order of nobility, if any such he may have or belong to. Any alien, being a free white person and a minor under the age of twenty-one years, who shall have resided in the United States three years next preceding his arriving at the age of twentyone years, and who shall continue to reside therein to the time of making application. may, after becoming twenty-one, and after having resided five years within the United States, including the three years of minority, be admitted a citizen without the preliminary declaration hereinbefore mentioned. Any alien of the age of twenty-one years and upwards, who enlisted or shall enlist in the armies of the United States, either the regular or volunteer forces, and has been or shall be honorably discharged therefrom, may be admitted to become a citizen without any previous declaration, and on proof of one year's residence within the United States. The children of parents duly naturalized, being under the age of twenty-one at the time of such naturalization, shall, if dwelling within the United States, be considered as citizens. If an alien who shall have declared his intentions shall die before he is actually naturalized, his widow and children shall be considered as citizens on taking the oaths prescribed by law. No alien who shall be a citizen, denizen or subject of any country, state or sovereign with whom the United States shall be at war at the time of his application, shall be then admitted to be a citizen of the United States. The statutes establishing the foregoing regulations, and also special regulations for classes of aliens resident within the country prior to the 18th day of June 1812, will be found as follows: Act of April 14, 1802, 2 Statutes at Large, 315; act of March 26, 1804, 2 id. 292; act of March 3, 1813, 2 id. 811; act of March 22, 1816, 3 id. 259; act of 26 May, 1824, 4 id. 69; act of 24 May, 1828, id. 310; act of 25 June, 1848, 9 id. 240; act of July 17, 1862, id. 1861-2, Little & Brown's ed. 597. If an alien is naturalized, he thereby acquires all the rights of a natural born citizen, including the right to take real property by descent. Ainslie v. Martin, 9 Mass. 454. A married woman may be naturalized without the concurrence of her husband. Priest v. Cummings, 16 Wend. 617. The residence and good moral character of the applicant cannot be proved by affidavits taken out of court; the witnesses must be present for examination. Anonymous, 7 Hill, 137. The naturalization of a father ipso facto, makes his son, then residing in the United States and a minor, a citizen. State v. Penney, 5 Eng. 621. Distinctions of color, so far as they are made important by the statutes above referred to, are perhaps inconsistent with the fifteenth amendment to the constitution of the United States, and are abolished by act of Congress of July 14, 1870. (1) Most of what is said in this chapter is entirely inapplicable in the United States, where no established church exists. This venerable body of men, being separate and set apart from the rest of the people, in order to attend the more closely to the service of Almighty God, have thereupon large privileges allowed them by our municipal laws: and had formerly much greater, which were abridged at the time of the reformation on account of the ill use which the popish clergy had endeavoured to make of them. For, the laws having exempted them from almost every personal duty, they attempted a total exemption from every secular tie. But it is observed by Sir Edward Coke, (a) that, as the overflowing of waters doth many times make the river to lose its proper channel, so in times past ecclesiastical persons, seeking to extend their liberties beyond their true bounds, either lost or enjoyed not those which of right belonged to them. The personal exemptions do indeed for the most part continue. A clergyman cannot be compelled to serve on a jury, nor to appear at a court-leet or view of frank-pledge; which almost every other (a) 2 Inst. 4. The constitution of the United States expressly prohibits congress passing any law respecting an establishment of religion, or prohibiting the free exercise thereof. 1st amendment. The several state constitutions also contain provisions on the same subject, some of which are still more comprehensive, but the general purpose of all is the same. Complete separation of church and state, and complete freedom in religious worship and in the expression of religious belief, are the rule throughout the states. In none of them can preferences of one religious sect over another be established by law, nor compulsory support, by taxation or otherwise, of religious worship, or attendance thereon, be required, or restraints upon the free exercise of religion according to the dictates of the conscience be imposed. Nevertheless, the common law of the land recognizes the fact that the prevailing religion is Christian, and it will not suffer one with impunity to shock the moral sense by utterances which a Christian community would regard as profane or blasphemous. Updegraph v. Commonwealth, 11 S. and R. 394; People v. Rug gles, 8 Johns. 293; State v. Chandler, 2 Harr. 555; Commonwealth v. Kneeland, 20 Pick. 234. Nor is the recognition of religion and of a superintending providence by the appointment of chaplains for the army and navy and for legislative bodies and the like, opposed to the constitu tional provisions referred to, though the spirit of those provisions would require impartiality as between religious denominations in making such appointments. Nor are laws for the compulsory observance of the Christian Sabbath unconstitutional. Commonwealth v. Wolf, 3 S. and R. 59; Commonwealth v. Lisher, 17 id. 160; Shover v. State, 5 Eng. 559; Cincinnati v. Rice, 15 Ohio, 225; State v. Ambs, 20 Mo. 214; Voglesong v. State, 9 Ind. 112; Frolickstein v. Mayor of Mobile, 40 Ala. 725. The religious societies which exist throughout the states are quite different in their organi ization from those which exist in England, and still more different in the relations they sustain to the state. They are for the most part formed under general laws, which permit the voluntary incorporation of societies of attendants upon religious worship, under such regulations as they shall see fit to establish for themselves, and with power to hold real and personal property for the purposes of their organization, but for no other purpose. Trustees of Quaker Society v. Dickinson, 1 Dev. 189. Chancellor Walworth described such a society as consisting of "a voluntary association of individuals or families, united for the purpose of having a common place of worship, and to provide a proper teacher to instruct them in religious doctrines and duties, and to administer the ordinances of baptism, &c. Although a church or body of professing Christians is almost uniformly connected with such a society or congregation, the members of the church have no other or greater rights than any other members of the society who statedly attend with them for the purposes of divine worship. Over the church, as such, the legal or temporal tribunals of the state do not profess to have any jurisdiction whatever, except so far as is necessary to protect the civil rights of others, and to preserve the public peace. All questions relating to the faith and practice of the church and its members belong to the church judicatories, to which they have voluntarily subjected themselves. But, as a general principle, those ecclesiastical judicatories cannot interfere with the temporal concerns of the congregations, or society, with which the church or the members thereof are connected." Baptist Church v. Witherell, 3 Paige, 301. Such a Bociety, when duly incorporated, is not an ecclesiastical, but a private civil corporation, the members of the society being the corporators, and the trustees the managing officers, with such powers as the statute confers, and the ordinary discretionary powers of officers in civil corporations. Robertson v. Bullions, 11 N. Y. 243. The church connected with the society, if any there be, is not recognized in the law; the corporators in the society are not necessarily members thereof, and the society may change its government, faith, form of worship, discipline and ecclesiastical relations at will, subject only to the restraints imposed by their articles of association and to the general laws of the state. Robertson v. Bullions, 11 N. Y. 243; Parish of Bellport v. Tooker, 29 Barb. 256; same case, 21 N. Y. 267; Burrel v. Associated Reform Church, 44 Barb. 282. The articles of association will determine who shall vote where the state law does not prescribe qualifications: State v. Crowell, 4 Halst. 390; and the [*377] person is obliged to do: () but if a layman is summoned on a jury, and before the trial takes orders, he shall notwithstanding appear and be sworn. (c) Neither can he be chosen to any temporal office; as bailiff, reeve, constable, or the like: in regard of his own continual attendance on the sacred function.(d) During his attendance on divine service he is privileged from arrests in civil suits.(e) In cases also of felony, a clerk in orders shall have the benefit of his clergy, without being branded in the hand; and may likewise have it more than once, (2) in both which particulars he is distinguished from a layman. (f) But as they have their privileges, so also they have their disabilities, on account of their spiritual avocations. Clergymen, we have seen, (g) are incapable of sitting in the house of commons; and, by statute 21 Hen. VIII, c. 13, are not, in general, allowed to take any lands or tenements to farm, upon pain of 101. per month, and total avoidance of the lease; (3) nor upon like pain to keep any tanhouse or brewhouse; nor shall engage in any manner of trade, nor sell any merchandize, under forfeiture of the treble value: which prohibi tion is consonant to the canon law. And In the frame and constitution of ecclesiastical polity there are divers ranks and degrees; which I shall consider in their respective order, merely as they are taken notice of by the secular laws of England: without intermeddling with the canons and constitutions, by which the clergy have bound themselves. under each division I shall consider, 1. The method of their appointment. 2. Their rights and duties: and 3. The manner wherein their character or office may cease. I. An archbishop or bishop is elected by the chapter of his cathedral church, by virtue of a license from the crown. Election was, in very early times, the usual mode of elevation to the episcopal chair throughout all Christendom; and this was promiscuously performed by the laity as well as the clergy: (h) till at length becoming tumultuous, the emperors and other sovereigns of the [*378] respective kingdoms of Europe took the appointment, in some degree, into their own hands, by reserving to themselves the right of confirming these elections, and of granting investiture of the temporalties, which now began almost universally to be annexed to this spiritual dignity; without which confirmation and investiture, the elected bishop could neither be consecrated nor (c) 4 Leon. 190. (b) F. N. B. 160. 2 Inst. 4. society may establish such rules as they may think proper for preserving order when met for public worship, and use the necessary force to remove a person who is disturbing the society by willful violation of these rules. McLain v. Matlock, 7 Ind. 525. If there should be a disruption of the society, the title to the corporate property will remain with that part of it which is acting in harmony with its own law; seceders will be entitled to no part of it. McGinnis v. Watson, 41 Penn. St. 9; M. E. Church of Cincinnati v. Wood, 5 Ohio, 283; Keyser v. Stansifer, 6 Ohio, 363; Ferraria v. Vasconcelles, 23 Ill. 456. And this will be true, notwithstanding a change in doctrine on the part of the controlling majority. Keyser v. Stansifer, 6 Ohio, 363. The courts of the state do not interfere with the control of these corporations, or with the administration of church rules or discipline, unless civil rights become involved, and then only for the protection of such rights. Hendrickson v. Decow, Sax. Ch. 577; Baptist Church . Witherell, 3 Paige, 301. But it is very common to provide by statute that the real estate of such corporations shall only be sold by the trustees, after obtaining a license from some designated court of record. It is not necessary that churches should be incorporated in order to become the beneficiaries of gifts to charitable uses; as to which see Hill on Trustees, 99 and note; Adams' Equity, 65 and note; Story Eq. Juris. § 1137, et seq.; Tiffany and Bullard on Trusts, 232. (2) Benefit of clergy was abolished in England by statutes 7 and 8 Geo. IV, c. 28, and in Ireland by statute 9 Geo. IV, c. 54, and the learning on this subject has ceased to be of practical importance. Besides what our commentator has on the subject in book 4, c. 28, the curious reader will peruse with interest, Hale, P. C. c. 45; Barrington's Observations on the statutes, Hobart's Rep. 283; State Trials, vol. 12, p. 631, note; vol. 13, p. 1015; vol. 20, p, 650, note. (3) The law on this subject has recently been consolidated and amended by statutes 1 and 2 Vic. c. 106; 2 and 3 Vic. c. 49; and 3 and 4 Vic. c. 86. See Hale v. Hale, 4 Beav. 369; Hall v. Franklin, 3 M. and W. 259; Lewis v. Bright, 4 El. and Bl. 917. receive any secular profits. This right was acknowledged in the Emperor Charlemagne, A. D. 773, by Pope Hadrian I, and the council of Lateran, (i) and universally exercised by other Christian princes: but the policy of the court of Rome at the same time began by degrees to exclude the laity from any share in these elections, and to contine them wholly to the clergy, which at length was completely effected; the mere form of election appearing to the people to be a thing of little consequence, while the crown was in possession of an absolute negative, which was almost equivalent to a direct right of nomination. Hence the right of appointing to bishopricks is said to have been in the crown of England () (as well as other kingdoms of Europe) even in the Saxon times; because the rights of confirmation and investiture were in effect, though not in form, a right of complete donation. (7) But when, by length of time, the cuscom of making elections by the clergy only was fully established, the popes began to except to the usual method of granting these investitures, which was per annulum et baculum, by the prince's delivering to the prelate a ring, and pastoral staff or crosier; pretending that this was an encroachment on the church's authority, and an attempt by these symbols to confer a spiritual jurisdiction: and Pope Gregory VII, towards the close of the eleventh century, published a bull of excommunication against all princes who should dare to confer investitures, and all prelates who should venture to receive them. (m) This was a bold step towards effecting the plan then adopted by the Roman see, of rendering the clergy entirely independent of the civil authority: and long and [*379] eager were the contests occasioned by this papal claim. But at length, when the Emperor Henry V agreed to remove all suspicion of encroachment on the spiritual character, by conferring investitures for the future per sceptrum and not per annulum et baculum; and when the kings of England and France consented also to alter the form in their kingdoms, and receive only homage from the bishops for their temporalties, instead of investing them by the ring and crosier; the court of Rome found it prudent to suspend for a while its other pretensions. (n) This concession was obtained from King Henry the First in England, by means of that obstinate and arrogant prelate, Archbishop Anselm: (0) but King John, about a century aftewards, in order to obtain the protection of the pope against his discontented barons, was also prevailed upon to give up by a charter, to all the monasteries and cathedrals in the kingdom, the free right of electing their prelates, whether abbots or bishops: reserving only to the crown the custody of the temporalties during the vacancy; the form of granting a license to elect, (which is the original of our conge d'estire,) on refusal whereof the electors might proceed without it; and the right of approbation afterwards, which was not to be denied without a reasonable and lawful cause. (p) This grant was expressly recognized and confirmed in King John's magna carta (q) and was again established by statute 25 Edw. III, st. 6, § 3. But by statute 25 Hen. VIII, c. 20, the ancient right of nomination was, in effect, restored to the crown; (4) it being enacted, that at every future avoidance of a bishoprick, the king may send the dean and chapter his usual license to proceed to election; which is always to be accompanied with a letter missive from the king, containing the name of the person whom he would have them elect: and, if the dean and chapter delay their election above twelve days, the ("Nulla electio prælatorum (sunt verba Ingulphi) erat mere libera et canonica: sed omnes dignitates tam piscoporum, quam abbatum, per annulum et baculum regis curia pro sua complacentia conferebat." Penes lericos et monachos fuit electio, sed electum a rege postulabant. Selden, Jan. Ang. L. 1, § 39. (m) Decret. 2 caus. 16. qu. 7. c. 12 and 13. (n) Mod. Un. Hist. xxv, 363, xxix. 115. (0) M. Paris, A. D. 1107. (p) M. Paris, A. D. 1214. 1 Rym. Foed. 198. (q) Cap. 1, Edit. Oxon. 1759. (4) [This statute was repealed by 1 Edw. VI, c. 2, but revived by 1 and 2 P. and M. c. 8, and 1 Eliz. c. 1. See 12 Rep. 7; Co. Litt. 134, a. n. 5; 26 and 27 Vic. c. 125.] But the bishoprics of the new foundation, that is to say, Gloucester and Bristol, (now united) Peterborough, Oxford, Chester, Ripon and Manchester, have been and still are donative. VOL. 1.-31 241 *nomination shall devolve to the king, who may by letters patent ap[*380] point such person as he pleases. This election or nomination, if it be of a bishop, must be signified by the king's letters patent to the archbishop of the province; if it be of an archbishop, to the other archbishop and two bishops, or to four bishops; requiring them to confirm, invest, and consecrate the person so elected: which they are bound to perform immediately, without any application to the see of Rome. After which the bishop elect shall sue to the king for his temporalties, shall make oath to the king and none other, and shall take restitution of his secular possessions out of the king's hands only. And if such dean and chapter do not elect in the manner by this act appointed, or if such archbishop or bishop do refuse to confirm, invest, and consecrate such bishop elect, they shall incur all the penalties of a præmunire. (5) An archbishop is the chief of the clergy in a whole province; (6) and has the inspection of the bishops of that province, as well as of the inferior clergy, and may deprive them on notorious cause. (r) The archbishop has also his own diocese, wherein he exercises episcopal jurisdiction; as in his province he exercises archiepiscopal. As archbishop he, upon receipt of the king's writ, calls the bishops and clergy of his province to meet in convocation: but, without the king's writ, he cannot assemble them. (s) To him all appeals are made from inferior jurisdictions within his province; and, as an appeal lies from the bishops in person to him in person, so it also lies from the consistory courts of each diocese to his archiepiscopal court. During the vacancy of any see in his province, he is guardian of the spiritualities thereof, as the king is of the temporalties; and he executes all ecclesiastical jurisdiction therein. If an archiepiscopal sec be vacant, the dean and chapter are the spiritual guardians, ever since the office of prior of Canterbury was abolished at the reformation. (t) The archbishop is entitled to present by lapse to all the ecclesiastical livings in the disposal of his *diocesan bishops, if not filled within six months. And the archbishop [*381] has a customary prerogative, when a bishop is consecrated by him. to name a clerk or chaplain of his own to be provided for by such suffragan bishop; in lieu of which it is now usual for the bishop to make over by deed to the archbishop, his executors and assigns, the next presentation of such dignity or benefice in the bishop's disposal within that see, as the archbishop himself shall choose; which is therefore called his option: (u) which options are only binding on the bishop himself who grants them, and not on his successor. (7) The prerogative itself seems to be derived from the legatine power formerly annexed by the popes to the metropolitan of Canterbury. (w) And we may add, that the papal claim itself (like most others of that encroaching see) was probably set up in imitation of the imperial prerogative called prime or primaria preces; whereby the emperor exercises, and hath immemorially exercised, (x) a right of naming to the first prebend that becomes vacant after his accession in every church of the empire. (y) A right that was also exercised by the crown of Eng r) Lord Raym. 541. (t) 2 Roll. br. 22. (a) Goldast Constit. (s) 4 Inst. 322,323. (a) Sherlock of Options, 1. (y) Dufresne V. 806. Mod. Univ. Hist. xxix. 5. (u) Cowell's Interp. tit. option. Imper. tom. 3, page 406. (5) [In Reg. v. Archbishop of Canterbury, 11 Q. B. 483, the question whether, under the above statute, it is imperative on the metropolitan to confirm the bishop designate without taking notice of objections put forward thereto, was discussed on an application for a mandamus, but the court being equally divided, no order was made.] (6) [The archbishop of Canterbury hath the precedency of all the clergy; next to him the archbishop of York; next to him the bishop of London; next to him the bishop of Durham; next to him the bishop of Winchester; and then all the other bishops of both provinces after the seniority of their consecration; but if any of them be a privy councillor he takes place after the bishop of Durham. Stat. 31 Hen. VIII, c. 10; Co. Litt. 94.] (7) [Options seem however to have been abolished, perhaps undesignedly, by statutes 3 and 4 Vic. c. 113, s. 42, which enacts that it shall not be lawful for any spiritual person to sell or assign any patronage or presentation belonging to him by virtue of any dignity or spiritual office held by him, and that every such sale or assignment shall be null and void to all intents and purpose."] |